Thanksgiving seemed like a good time to address civility.
Yes, I know the topic seems a bit unrelated to the subject matter I usually cover here, but bear with me, it is directly relevant.
In fact, John Marsh, Ben Fink, and I discuss this topic in Episode 9 of our Fairly Competing podcast because it tends to be a frequent issue in trade secret cases. The reason is that most trade secret misappropriation cases involve departing employees, and are fast-paced, emotionally-charged, and often involve feelings of rejection, betrayal, and disloyalty, compounded by a fear (warranted or not) that the employee may have stolen information for use at a competitor.
But it’s not limited to trade secret cases, and, despite growing attention to the issue, it’s not something new.
Probably my first brush with incivility was almost 30 years ago, when I was working at a firm in New York City. I was a junior associate, accompanying a more senior associate to court on a pro bono matter, helping an elderly, blind woman avoid being evicted from her apartment. Talk about emotionally-charged! Suffice it to say that the lawyer I was with and the lawyer for the landlord seeking to evict our client nearly came to blows outside the courtroom. Fortunately, it stopped just short of an actual fight.
You could chalk that up to the rough and tumble of New York, but that would be wrong. Emotions can get high in various situations, especially during depositions, where there’s often over-the-top skirmishing and sometimes more.
And, it’s not limited to lawyers. In Florida a few years ago, it seems that a judge got involved in an altercation with one of the lawyers.
It can also be more benign. It can be an inability to separate advocacy from courtesy.
Years ago, a client was the defendant in a breach of contract case in which the arbitrator had issued a damages award in favor of the other side. The amount of the award was a fraction of what the plaintiff requested, but it was still significant. And, it was a very precise dollar amount, down to the penny, suggesting that the arbitrator added up very specific aspects of the claimed damages. The only problem was that when we combed through all of the evidence, there was no combination or permutation of the evidence that could yield the dollar amount of the award. We appealed. The trial court confirmed the arbitral award, and we appealed to the Massachusetts Appeals Court. Based on preexisting vacation schedules, I asked opposing counsel for a short extension of the time to file our brief, to allow the partner on the case to review the brief and make any edits he may have when he returned from vacation. Opposing counsel refused. He said that the appeal was frivolous and therefore would not give me more time. Try as I might, I could not convince him that his view of the substance shouldn’t interfere with a common courtesy. We got the brief done in time. Not surprisingly, given his perspective, he sought fees based on the argument that the appeal was frivolous. In the end, the Appeals Court ruled in our favor, vacated the arbitrator’s award, and noted in a footnote that the request for fees was moot.
Often, the refusal to agree to common courtesies isn’t even based on a misplaced conflation of (the lawyer’s perspective on) the merits with the procedure or to gain some other perceived (even if inconsequential) advantage. Instead, it’s designed simply to cause opposing counsel or parties unnecessary inconvenience. This type of refusal comes up all the time, and is often blamed on the client’s recalcitrance. As lawyers, our job is to rise above that. It can be hard. But, we should and we can.
In fact, right after I filed the brief in the appeal, Mass Lawyers Weekly published an article about granting simple courtesies like extensions. It urged lawyers to grant them. And it went further, suggesting that lawyers shouldn’t refuse to grant them even if the other side has refused in the past. I thought about faxing (yep, faxing — this happened that long ago) the article to opposing counsel, but refrained. But it was an excellent article with an important point: advocacy needs to be tempered with decency.
We’re all tempted to “zealously” advocate, but that shouldn’t be confused with losing our professionalism.
To be clear, while making bad arguments to avoid leaving any stone untuned is debatably a civility issue, our civility problem is more fundamental. It’s how we treat each other and opposing parties. It’s about lawyers who think they gain something by making the other side suffer or, even worse, lawyers who lie to advance their client’s cause. Yep, lie. And it happens horrifyingly more than you’d think.
As recently as two years ago, opposing counsel in a case repeatedly denied saying something that she had in fact said. Her denial was not only demonstrably false, but the statement she was denying had been recorded during a hearing. Even after being presented with the transcript, she still continued to deny saying it. How does that help a client? It doesn’t. It’s just misguided and damaging to everyone and to the profession.
Civility is frequently tough, especially when facing incivility. It’s definitely easier to lose your temper and respond in kind, then to keep calm. (We’ve all done it.) And it’s easy to say, “No,” especially when we aren’t sure what all of the consequences of saying, “yes,” will be.
But our job is to be thoughtful, not simply reactive. Obstinance for the sake of obstinance hurts the profession and gets nothing for our clients except increased legal fees. And to bring this back to trade secret litigation — they’re often among the most intense cases, with all the emotion of a divorce and the high-stakes of bet-the-company cases. It’s no wonder that lawyers will feel the need to be unreasonable.
On the positive side, there’s a movement afoot to change the model rules of professional conduct to address some of this behavior: Is it Time to Remove “Zeal” From the ABA Model Rules of Professional Conduct?
While I have my doubts that changing one word will change the conduct, other efforts might. Some states have added mandatory civility (or “professionalism”) training, and the ABA has recently recommended Guidelines for Conduct to address these issues.
Hopefully these combined efforts will help.
So, as we enjoy Thanksgiving with our families, hopefully we can take a moment to reflect that the person on the other side of the “v” is doing the same. Humanize them, and maybe it will help to remind us that we don’t need to hurt them just to hurt them.